Spannuth v. Cleveland, Cincinnati, Chicago And St. Louis Railway Company

• Decision Date: 30 June 1925
• Docket Number: 24,973
• Citation: 148 N.E. 410,196 Ind. 379
• Parties: Spannuth v. Cleveland, Cincinnati, Chicago and St. Louis Railway Company
• Court: Indiana Supreme Court

148 N.E. 410

196 Ind. 379

Spannuth v. Cleveland, Cincinnati, Chicago and St. Louis Railway Company

No. 24,973

Supreme Court of Indiana

June 30, 1925

1. NEW TRIAL.---Verdict for less than actual damages proved by uncontradicted evidence held not to require granting of new trial.---The fact that in an action for personal injuries the damages awarded the plaintiff were less than the uncontradicted evidence warranted is not cause for a new trial where the evidence for the defendant, if believed would have justified the refusal of any recovery by the plaintiff. p. 380.

2. NEW TRIAL.---Affidavits of jurors may be considered in aid of verdict but not to impeach it.---Affidavits of jurors may be considered in aid of a verdict but not to impeach it. p. 380.

3. APPEAL.---Presumptions and inferences supporting action of trial court will be adopted rather than those against it.---Where appellate tribunal is driven to the necessity of indulging presumptions or drawing inferences, it will adopt those presumptions and draw the inferences that will tend to support the action of the trial court rather than those which would overthrow it. p. 383.

4 APPEAL.---In order to justify a reversal of the court's action in denying a new trial, the record must affirmatively show that such action was erroneous.---In order to justify the reversal of the trial court's action in approving a verdict by overruling a motion for a new trial, the record must affirmatively show that such action was erroneous, as a judgment cannot be reversed upon a mere possibility or probability that error was committed. p. 383.

From Marion Superior Court (A 548); Theophilus J. Moll, Judge.

Action by Ernest Spannuth against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From an unsatisfactory judgment for plaintiff, he appeals. (Transferred from the Appellate Court under § 1397 Burns 1926, § 1394 Burns 1914).

Affirmed.

Beckett & Beckett and Forney & Felt, for appellant.

Frank L. Littleton, Miller, Dailey & Thompson and Forrest Chenoweth, for appellee.

OPINION

Per Curiam.

Appellant sued for damages for personal injuries and the jury returned a verdict in his favor for $ 100, which has not been challenged in any way by the defendant (appellee). Being dissatisfied with the amount of damages awarded him, appellant (plaintiff) filed a motion for a new trial for the alleged reasons that the verdict is not sustained by sufficient evidence and is contrary to law, attaching to his motion an affidavit by one of the jurors stating that after six of the twelve jurors had for twenty-three hours insisted on finding in favor of the defendant, and had opposed finding for the plaintiff, they offered to join the other six in returning a verdict in favor of the plaintiff if permitted to fix the amount of damages; and that this being agreed to, they fixed the damages at $ 100 and the verdict was returned accordingly, but that the six jurors who had been in favor of finding for the plaintiff took no part in making the assessment of damages except to join in returning the verdict pursuant to said agreement.

When the evidence is examined, we find that there was evidence tending to sustain the refusal of the jury to find plaintiff entitled to the damages claimed by him as follows: Plaintiff testified that he laid his tools on the platform beside the railroad track near a watchman's shanty at a street crossing in the city of Indianapolis and went into the shanty to keep warm while waiting for a train from the east on the C. I. & W. Railroad which was expected to stop there; that when the train pulled in on the second track over from where he was, he picked up his tools and started across the intervening track toward it, when he was struck and badly injured by an engine coming from the west, pulling a train that defendant was operating on the intervening track; and that it was about eight feet from the shanty to the first rail of the first track, and the tracks were about eight feet apart. A stenographer called as a witness for the defense testified that when plaintiff was asked by a representative of the defendant company why he did not see the train that struck him, he answered "Well, I never looked for it. I just ran right across the track." That he said the C. I. &...